UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
UNITED STATES OF AMERICA,
Plaintiff,
V.
DAVID L. PIERCE,
Defendant.
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Criminal Action No. 5: 14-056-1
and
Civil Action No. 5: 17-289
MEMORANDUM OPINION
AND ORDER
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This matter is pending for consideration of Defendant David Pierce’s motion to
vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. [Record No. 211] United
States Magistrate Judge Edward B. Atkins has issued a report, recommending that Pierce’s
motion should be denied and that no Certificate of Appealability should issue. [Record No.
222] Pierce has not filed objected to the Magistrate Judge’s Recommended Disposition.
Although this Court must make a de novo determination of those portions of the
Magistrate Judge’s recommendations to which objections are made, 28 U.S.C. §
636(b)(1)(C), “[i]t does not appear that Congress intended to require district court review of
a magistrate’s factual or legal conclusions, under a de novo or any other standard, when
neither party objects to those findings.”
Thomas v. Arn, 474 U.S. 140, 150 (1985).
Nevertheless, the Court has examined the record and, having conducted a de novo review of
the matter, agrees with the Magistrate Judge.
Pierce pleaded guilty to conspiracy to defraud the United States, wire fraud, and
aggravated identity theft on January 28, 2015. [Record No. 152] As part of his plea
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agreement, he stipulated to a two level enhancement of his offense level pursuant to United
States Sentencing Guideline (“U.S.S.G.”) § 2B1.1(b)(2)(A), because the offense involved ten
or more victims. [Id. ¶ 9(d)] Overall, he filed thirteen false tax returns in the names of
eleven different taxpayers, claiming a total of $4,222,240 in fraudulent refunds. [Record No.
165, ¶ 12]
Pierce now contends that the two level enhancement under U.S.S.G. § 2B1.1(b)(2)(A)
should not have been applied in calculating his guideline range because two of the “victims”
of his crimes were his co-conspirators. [Record No. 211] He argues that a co-conspirator
who willingly participated in and profited from the enterprise cannot be a “victim,” and so
there were not ten “victims” of his crimes as required for an enhancement under U.S.S.G. §
2B1.1(b)(2)(A). [Id.] He claims that: (i) his attorney provided ineffective assistance by
advising him to stipulate to an unwarranted guidelines enhancement, and (ii) because his
counsel’s assistance was ineffective, his plea of guilty was not knowing, intelligent and
voluntary. [Id.]
But as explained more fully in the Recommended Disposition, the term “victim,” for
purposes of U.S.S.G. § 2B1.1(b)(2)(A), includes “any individual whose means of
identification was used unlawfully or without lawful authority.” U.S.S.G. § 2B1.1 cmt. 1 n.
4(e)(ii). The Sixth Circuit has explained that, because “permission itself does not confer
lawful authority,” the phrase “without lawful authority” “includes instances where an
individual gives his . . . information to a defendant with permission to misuse it.” United
States v. Lumbard, 706 F.3d 716, 722-24 (6th Cir. 2013).
The fact that Pierce’s co-
conspirators may have willingly participated in and profited from the conspiracy cannot
confer “lawful authority” to file false tax returns in their names. As a result, the two level
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enhancement was properly applied. Pierce’s arguments to the contrary cannot demonstrate
that his counsel’s assistance was ineffective or that his guilty plea was not knowing,
intelligent and voluntary.
The Court will deny a Certificate of Appealability pursuant to Federal Rule of
Appellate Procedure 22(b), Rule 11(a) of the Rules Governing § 2255 Proceedings, and 28
U.S.C. § 2253(c). Pierce has failed to show that the issues he raises are debatable among
reasonable jurists or that they would find this court’s “assessment of the constitutional claims
debatable or wrong.” Likewise, reasonable jurists would not find “it debatable whether the
petition states a valid claim of the denial of a constitutional right.” Slack v. McDaniel, 529
U.S. 473, 484 (2000).
Accordingly, it is hereby
ORDERED as follows:
1.
The United States Magistrate Judge’s Recommended Disposition [Record No.
222] is ADOPTED and INCORPORATED by reference.
2.
Defendant David Pierce’s motion to vacate, set aside, or correct his sentence
[Record No. 211] is DENIED.
3.
The defendant’s collateral proceeding is DISMISSED, with prejudice, and
STRICKEN from the docket.
4.
A Certificate of Appealability shall not issue with respect to any issue raised in
this matter.
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This 1st day of December, 2017.
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